Immigration detention: Government Response to the Committee’s Sixteenth Report of Session 2017–19: Second Special Report of Session 2019–20

Second Special Report

On 7 February 2019, the Joint Committee on Human Rights published its Sixteenth Report of Session 2017–19 [HC 1484 / HL Paper 278] Immigration detention The response from the Government was received on 23 July 2019 and is appended to this report.

In the Government’s Response, the Committee’s recommendations are shown in bold type, and the Government’s responses are shown in plain type.

Appendix 1: Letter from the Minister of State for Immigration, to the Chair of the Committee, dated 23 July 2019

I am grateful to the Joint Committee of Human Rights for your enquiry and report on immigration detention. The Government’s detailed response is attached.

Although the Government is unable to agree to all of your recommendations, we have a shared commitment to a fair and humane immigration system within which detention plays a necessary but strictly limited role. I thought therefore that it would be helpful to provide some wider context to our response, not least because we continue to make good progress on the ambitious programme of reform the Home Secretary set out in his statement to Parliament on immigration detention in July last year.

As my letter to your Committee of 3 December 2018, copied to the Home Affairs Select Committee, explained, the Government’s strategic priorities here are clear: to keep the use of immigration detention to a minimum; to ensure that decisions to detain – and subsequent decisions to maintain detention or release from detention – are well made, with more systematic safeguards and support for the vulnerable; to secure greater transparency around immigration detention; and to ensure that people who are detained are treated with dignity and in an estate fit for purpose.

There will always be a balance to strike between issues of vulnerability and immigration and public protection considerations. As part of a fair and humane immigration system it is essential that we deter and tackle immigration abuse, whilst protecting the public and vulnerable individuals within the system. It is an essential responsibility of government to promote compliance with our laws and individuals’ conditions of entry to the UK, and secure return, enforced or voluntary, where appropriate.

At the heart of our reforms is a commitment, over time, to secure a material reduction in the number of people detained and the length of time they spend in detention, coupled with improved welfare for detainees and a culture that maintains the highest standards of professionalism. The focus is not on the vast majority of migrants, employers and others who abide by the rules. It is on the small minority in the UK unlawfully who fail to leave voluntarily, or who enter without the required leave, and for whom we are confident that no other approaches to leaving the UK will work, or where the risk of absconding, or the need for public protection, are material considerations.

The figures speak for themselves on this. Our starting point is not detention: at any one time, 95% of those who are liable for removal are managed in the community. By summer 2019, the immigration detention estate will be almost 40% smaller than it was four years ago, and of significantly higher quality. At the end of December 2018, there were 30% fewer individuals in detention than a year earlier.

We welcome independent and objective scrutiny, which shines the spotlight on areas where further work is needed as well as highlighting improvements that have been made, and good practice that can be shared. All Immigration Removal Centres (IRCs) are subject to external scrutiny by Her Majesty’s Chief Inspector of Prisons and the Independent Monitoring Boards. The two independent reports we commissioned from Stephen Shaw have provided a valuable focus for and added impetus to our reforms. Furthermore our commission to the Independent Chief Inspector of Borders and Immigration (ICIBI) to carry out regular inspections of the operation of the adults at risk policy demonstrates our ongoing commitment to understanding what works, and bringing greater transparency to these challenging responsibilities. We can expect the conclusions from the first of these inspections shortly.

Against this backdrop I wanted to highlight some key examples of progress against the strategic priorities noted above.

First, we are working hard to ensure that those at risk of detention and enforced removal understand the options available to them to leave voluntarily, and are offered support to do so where appropriate. We have strengthened our Voluntary Returns Service and put it at the heart of these conversations. Local Immigration Enforcement teams are using their strong community links and established relationships with diaspora communities and other partners to encourage open discussions about options for voluntary return. Investment and reform in our reporting centres mean that the staff there are spending more, and more productive, time with those who are reporting. This includes explaining during induction interviews what is happening, considering any vulnerabilities that new reportees may have and being available at any time to discuss the possibility of voluntary return.

Working with Non-Governmental Organisations and community and faith groups we are trialling new approaches to case resolution, with the aim of finding out how we can achieve better outcomes for migrants through the faster resolution of their cases outside detention, whether that results in a grant of leave to remain or their departure from the UK. A two-year pilot scheme to provide alternative arrangements for a number of women in detention or at risk of being detained at Yarl’s Wood Immigration Removal Centre is already under way in Newcastle, and we are developing further pilots to test different models of support.

These pilots will be strongly evidence-based and outcome-focused, helping us assess whether it is possible to achieve better (or equivalent) results in terms of return or other case resolution than if we had detained the individuals concerned. Over time we will test different methods of supporting different cohorts of migrants, with pilots based in different geographic locations and with a variety of partners. For Foreign National Offenders, we are discussing with Detention Action whether the existing pilot, successfully supporting male ex-offenders in and following detention, might be extended.

Second, we are strengthening our face to face engagement with those who are detained, and the quality of our decision making and other safeguards, ensuring that vulnerability considerations are always given due priority. We have increased the number of Home Office staff in Immigration Removal Centres, with the new detention engagement teams improving induction and the links between detainees and their caseworkers. This increased one-to-one interaction will also support the management of detainees’ wellbeing and identify any signs of mental or physical deterioration. Individuals now have more opportunities to provide further evidence before key decisions are made about their cases, and decision makers have more advice and support available to help them to make better quality decisions.

The Detention Gatekeeper function is improving the quality and consistency of initial decisions to detain, with judgements made independently of the referring team or caseworker. The Detention Gatekeeper ensures that all relevant factors required to make lawful decisions to detain have been taken into account - including adults at risk considerations - and that alternatives to detention, including voluntary return, have been fully explored. Following a successful pilot relating to FNOs transferring to an Immigration Removal Centre from prison, the Detention Gatekeeper now also assures, through a detention review, the decision to detain in all foreign national offender cases, including those transferring from prison. Since September 2016 the Detention Gatekeeper has rejected more than 2700 detention referrals.

Strengthened Case Progression Panel arrangements ensure that case progression, vulnerability and public protection considerations are a key part of any decision to maintain or cease detention. We continue to make good headway in identifying independent panel members and considering potential models for their involvement in the existing case progression system – our thinking here is developed from other practices, including the Independent Family Returns Panels. This is an area where the Committee has also provided helpful commentary, which is further informing our considerations. In parallel, we have piloted the introduction of a new Rule 35 body, separate from casework decisions and focused solely on questions of vulnerability, into the process for responding to Rule 35 notifications, and have seen an increase in the quality of our consideration of these. We anticipate this new body being a permanent fixture from August 2019, subject to further consideration, particularly in the light of any further changes to Rule 35, following the targeted consultation on the Immigration Removal Centre Rules (to update and replace the Detention Centre Rules 2001). The consultation ran until 4 June and, in particular, was seeking views on how Rule 35 might better support the identification, reporting and caseworker consideration of people with vulnerabilities.

Building on the existing four-month reviews, we started a six-month pilot in February this year to make an automatic referral to the courts for a bail hearing after two months. The pilot provides certainty for eligible detainees that their detention is subject to further judicial oversight. Importantly, this is an additional automatic referral: detainees - including foreign national offenders - continue to be able to go to the courts at any time to apply for release on immigration bail. The detention engagement teams in the Immigration Removal Centres are on hand to explain the process to detainees and to answer any questions or concerns. As requested, I have included an update on that pilot at Appendix B, within which I have set out the success measures that we will be considering progress against.

We are continuing to work to ensure that the adults at risk in immigration detention policy makes the most effective contribution possible to identifying vulnerable individuals and making better balanced decisions about whether or not they should be detained. In particular, we have now appointed an independent medical professional with expertise in immigration detention to consider our approach to the policy and response to Stephen Shaw’s recommendations. This work will be further informed by the consideration that both Committees have given to this and by the responses that we receive on the draft Immigration Removal Centre Rules consultation.

Third, we have made significant progress in increasing transparency around immigration detention. Building on the significant information already published, we are taking forward a fundamental review of the data required to provide a more complete and coherent account of immigration detention. Last November we published more data on Rule 35 and, for the first time, on pregnant women in detention and on deaths in and escapes from immigration detention. We will shortly be consulting on the information we already publish and on what additional information might be published to provide a fuller picture of immigration detention. We have agreed terms of reference with the Independent Advisory Panel on Deaths in Custody for a review of deaths in immigration detention, ensuring that lessons are learned, which is expected to report in the autumn.

Finally, we have made significant progress in the strategic management of the detention estate itself. A systematic approach to modernisation and rationalisation is improving further the quality of the provision and ensuring that we have the geographical footprint and resilience to meet future need. Better staff/detainee ratios are improving welfare and safety. We have closed Campsfield House Immigration Removal Centre, ended the practice in some IRCs of placing three detainees in rooms originally designed for two, and reviewed the standards for all rooms in the estate. We are considering carefully how helpful detainees have found Skype and other instant messaging platforms – trialled in two removal centres - in contacting their family overseas from detention. The new contract to manage the IRCs at Gatwick, and the need to replace the Immigration Removal Centres at Heathrow when the third runway is built, will set high expectations for the quality of management and staffing in key elements of the estate.

I hope that this note provides further helpful information for the Committee, and I look forward to continuing discussion on these important issues.

Rt Hon Caroline Nokes MP

Automatic referral for bail pilot – Midway point

1)On 24 July 2018, the Home Secretary laid before Parliament the second independent review by Stephen Shaw into immigration detention. Responding to that review, the Home Secretary committed to going further and faster with the reforms to immigration detention in four priority areas: encouraging and supporting voluntary returns; improving the support available to vulnerable detainees; increasing transparency around immigration detention; and a new drive on dignity in detention.

2)As a part of this commitment, the Home Secretary, in agreement with the Lord Chancellor and Secretary of State for Justice, announced plans to pilot an additional automatic bail referral to the First-tier Tribunal of the Immigration and Asylum Chamber at the two-month point; halving the time in detention before a first bail referral. I wrote to you on 7 February to notify you about the start of the pilot on 10 February, and its six-month duration. I also committed to updating you at the midway point.

3)The main aim of the pilot is to understand whether an earlier, automatic referral to the Tribunal at the two-month point makes a difference in terms of the handling of a detainee’s case during their time in detention. This will need to be carefully considered against the current, statutory four-month automatic referral provision, as well as consideration of how the process operates and its impacts, particularly for those whom the process is designed to support, and those administering it, such as Her Majesty’s Courts and Tribunals Service.

4)In my letter, I provided an estimate that around 350 individuals would be within the scope of the pilot. Three months into the pilot, our early assessment of the figures show that fewer cases have remained in detention, with around 200 eligible cases remaining detained at week 8, the point at which the first week’s intake became eligible for automatic referral to the Tribunal. These cases have already started to flow into the Her Majesty’s Courts and Tribunals Service part of the process. It is too early to say, with any certainty, what the data is telling us. But, as I set out in my letter to you, once the pilot has concluded, and following its full evaluation, I expect to provide a more substantive update.

5)The detention journey for individuals in the two-monthly auto-referral pilot will be compared to the baseline cohort who are subject to four-monthly auto-referrals. Comparison areas will include:

6)I should re-emphasise that the automatic bail referral acts as an additional safeguard and does not change the fact that all detainees, including those foreign national offenders facing deportation, can apply for bail at any time. Those who are detained can apply for bail before a referral is due, or they can choose to opt out of the process, or withdraw the application once it has been submitted, if the timing of the automatic referral does not suit them.

Published: 25 October 2019